Agency to probe how ex-NSA Gusau, others brokered settlement
Some of the suspects implicated in the $180million Halliburton bribery scandal are likely to be retried, following fresh evidence, it was learnt yesterday.
Also yesterday, an Economic and Financial Crimes Commission (EFCC) source said it may review claims that a former National Security Adviser (NSA), Gen. Aliyu Gusau and a former Director-General of the Department of State Service (DSS), Col. Kayode Are, facilitated an out of court settlement with five companies on the scandal.
A document submitted to the EFCC indicated that the government opted for settlement agreement because of Julius Berger’s strategic roles in the nation’s economy.
It was also gathered that the EFCC was prevailed upon to adopt plea bargain because the nation’s laws on the subject matter were weak.
But the anti-graft agency has not foreclosed the trial of the suspects.
A source said: “The EFCC is making significant progress in its ongoing investigation and at the end of the day, it may retry some of the suspects implicated in the scandal. Already, one of the suspects has a pending application before the Supreme Court.
“There are other suspects who will also be arraigned, depending on the outcome of our investigation. All the key actors have written us to explain their roles.
“We are probing the role of all past and present public officers involved in the deal.”
In one of the documents made available to the EFCC, it was recommended that there is nothing wrong in prosecuting suspects afresh if there are new evidence.
“On the issue of the Nigerians involved, we opted in the exercise of the prosecutorial discretion to charge them piecemeal and the lawyers commenced the prosecution. The proceedings were however not as fast as we expected because of lack of sufficient evidence and witnesses.
“There is nothing stopping the EFCC from proceeding with these cases if they now have sufficient evidence and the requisite witnesses to prosecute instead of trying to impugn a transaction they initiated, participated and consummated. It should be noted that the EFCC vetted and co-signed all the Non-Prosecution Agreements.
“Given the entirety of the circumstances and the facts at our disposal at the time the negotiations were conducted, we did our best to preserve the national interest.
“Government is therefore invited to objectively review the transaction in order to arrive at an informed position and should not rely on the misconceived views and opinions of persons and agencies that have an interest to serve.”
A document obtained by our correspondent yesterday confirmed the ongoing investigation by the EFCC that many public officers played some roles in the deal with the five companies.
It alleged that Gen. Gusau and Col. Are facilitated out of court settlement with five companies on the $180million Halliburton bribery scandal.
The document, which is being reviewed by the EFCC, states in part: “As soon as the criminal suits were filed, the then NSA, General Aliyu Gusau, called for an Out of Court Settlement in view of the strategic role that Julius Berger (one of the companies implicated in the bribery scandal) plays in our economy.
“It was, therefore, agreed that a settlement meeting be held in his office and he nominated the Deputy NSA in the person of Kayode Are to chair the meeting.
“At the meeting convened for that purpose, we took a critical look at the position of our laws and agreed that our laws on the subject matter were weak and reliance on the penal sanctions provided under the laws, only pittance by way of fines could be realized from the out of court settlement.
“As a result, we opted to pursue the companies on the ground of ‘reputational damage’ occasioned the country by the alleged acts of bribery.
“It was therefore resolved that the companies involved would be asked to pay fines for reputational damage to the country.
“To serve as deterrence, it was agreed that companies involved would be made to disgorge 5 (five) times the amount that was transmitted through them and also pay the solicitors’ fees as was done in the Pfizer’s case involving the Federal Government.
“That was how Julius Berger was made to pay $26million to the Federal Government of Nigeria exclusive of the solicitors’ fees, which was paid to them directly. This was with the knowledge and involvement of the EFCC nominated lawyer and Secretary.
“This strategy became the threshold for negotiations with the rest of the companies at the instance of the EFCC themselves who came up with a lot of companies to negotiate and pay the FGN directly through the CBN and over $200 million were collected.”
Also, insights were given on how the five lawyers, who fostered the plea bargain, were appointed.
The document said in 2010, the then Chairman of the EFCC, Mrs Farida Waziri, got a “letter from some American lawyers to the effect that they wanted to sue Halliburton and other associated companies in respect of the LNG bribery scandal on the understanding that they would be entitled to 33 1/3 of whatever they recovered as professional fees.”
The document said the government felt “very uncomfortable with the approach and rather called for the files to review the entire subject matter and fashion out an appropriate strategy that would best serve Nigeria’s over all interest.
The document said after a review of the files on the subject, the government came to the considered view that the “best approach would be to assemble a team of Nigerian solicitors working together with the EFFC to commence criminal proceedings against the foreign companies involved, while reviewing on the basis of available evidence how best to deal with the Nigerian individuals involved.”
To constitute a team to commence prosecution, the lawyers were nominated as follows: the President of the Nigerian Bar Association, Mr J.B. Daudu, SAN, Mr. E.C. Ukala, SAN, Mr. D.O. Dodo, SAN(the Office of the AGF) and the EFCC, nominated Mr. G.O. Obla, SAN and Mr. Emmanuel Akomoye, the then Secretary of the EFCC to participate in the trial and monitor the ensuing negotiations.
“The then Executive Secretary of the National Human Rights Commission, Mr. Roland Ewubare, was also co-opted because of his extensive experience on the issue from the American perspective, having practised law in the United States of America for a long time.”
An Abuja High Court on March 27, 2013 struck out the case against six Nigerian suspects arraigned over the Halliburton scandal.
Those set free were a former Permanent Secretary, Ibrahim Aliyu, Mohammed Gidado Bakari and four companies.
The four companies are Urban Shelter Ltd, Intercellular Nigeria Ltd, Sherwood Petroleum Ltd and Tri-Star Investment Ltd.
The six accused persons had stood trial for allegedly serving as conduits and receiving bribes in hard currency to facilitate natural gas contracts between 1994 and 2005.
Justice Abubakar Sadiq Umar said the prosecution had failed to diligently prosecute the case.
Also, Bodunde Adeyanju, former aide to ex-President Olusegun Obasanjo, was arraigned in 2010 alongside George Mark, Jeffrey Tesler(at large), Hans George Christ, Heinrich J. Stockhausen; Julius Berger Nigeria Plc and Bilfinger Berger GMBH.
Mark, Tesler, Christ, Stockhausen; Julius Berger Nigeria Plc and Bilfinger Berger GMBH were alleged to have sometime between 2002 and 2003 conspired to make several cash payments in the sum of US$1million (five times) totalling in equivalent $5million to Bodunde .
They were alleged to have committed an offence contrary to Section 16 of the Money Laundering Act 1995(as saved by Section 23(2) of the Money Laundering Act 2004) and punishable under Section 15(2) and (3) of the Money Laundering Act 1995(as saved by Section 23(2) of the Money Laundering Act, 2004).
The EFCC is closing in on more suspects in its ongoing probe of the whereabouts of the $200m (N66billion) penalty fines paid by five companies involved in the scandal.
The anti-graft agency has asked the lawyers who handled the settlement to account for the fines and about $12million(N3.960billion) collected as “legal fees”.
One of the lawyers, Mr. Damian Dodo (SAN), in a letter to the EFCC Chairman, Mr. Ibrahim Magu admitted that the legal team got $3.5million out of the $4.5million paid to it.
He said the balance of $1,000,000 was remitted to the Federal Ministry of Justice as “reimbursement cost to the Federal Government of Nigeria.
The $180million bribery scandal involved the former Halliburton subsidiary, Kellogg Brown and Root (KBR), in respect of the Liquefied Natural Gas plant in Bonny.
Albert J. Stanley admitted before a Houston court in the US on September 4, 2008 that he orchestrated more than $180million in bribe to senior government officials.
Stanley alleged that the bribe was channeled through a UK lawyer, Tesler, in four installments of $60million; $32.5million; $51million and $23million.
The bribe was allegedly facilitated between 1995 and 2005 in London.
The countries where the bribe money was allegedly stashed by some top government officials and their accomplices are France, the United Kingdom, Switzerland, Portugal and Seychelles.
Tesler, 63, was in February, 2012 sentenced to 21 months in prison in the US after pleading guilty in March last year to bribing Nigerian Government officials with $132 million between 1994 and 2004. He also forfeited $149 million to US authorities under the Foreign Corrupt Practices Act (FCPA).
According to sources, Tesler played a fast one on Nigerian officials who were to benefit from the $180m by diverting $133, 073,750million to his account in Switzerland.
He shared only about $22, 417, 000 and DRM 500,000 to some top government officials.
Upon discovery of the $133, 073,750m in Tesler’s account, the Swiss government froze the account and during the trial of the accused person, the looted fund was transferred to the US.
But the Federal Government, through the Office of the Attorney-General of the Federation, has initiated moves to recover the $133, 073,750m which was found in Tesler’s account.